Cannabis legislation puts sniffer dogs out of work

In Colorado, cannabis legislation is causing problems for highly trained drug sniffing canines. Kilo, Colorado’s now infamous drug detection dog faces retirement through redundancy for a job so well done.
Recently a case dating back to 2015 came before the Colorado Court of Appeals. It found in favour of the defendant Kevin McKnight in a landmark case. Kilo detected illicit drugs in McKnight’s truck after police stopped it. McKnight took a wrong turn after leaving a property suspected of dealing drugs.
Kilo’s training means he can detect cocaine, heroin, ecstasy, methamphetamine and marijuana. In the roadside drug search, he detected a pipe with a white powdered residue. McKnight faced charges of possessing drug paraphernalia and a controlled substance. McKnight’s attorney motioned to suppress the sniffer dog evidence for lack of probable cause. In 2015, the judge allowed the evidence.

Court of Appeals overturns decision

Recently a three-judge panel in Colorado’s Court of Appeals overturned the 2015 McKnight decision. They decided a sniffer dog could not tell its handlers what substance it was indicating. They found the search did in actual fact lack probable cause. According to presiding judge Daniel Dailey:
“Because Amendment 64 legalized possession for personal use of one ounce or less of marijuana by persons 21 years of age or older in Colorado, it is no longer accurate to say, at least as a matter of state law, that an alert by a dog which can detect marijuana — but not specific amounts — can reveal only the presence of ‘contraband’.”
The judges concluded that Kilo cannot tell his handlers what particular substance he is alerting them to. It could have been to legal cannabis rather than to methamphetamine. It is this point that makes the car search illegal. The court concluded:
“A dog sniff could result in an alert with respect to something for which, under Colorado law, a person has a legitimate expectation of privacy. Because a dog sniff of a vehicle could infringe upon a legitimate expectation of privacy solely under state law, that dog sniff should now be considered a ‘search’ for purposes of (the amendment) where the occupants are 21 years or older.”
Judge Michael Berger said Colorado’s Amendment 64 gives people in Colorado “an enforceable expectation of privacy”. This means that evidence found by “dogs trained to sniff out weed” during a search for contraband is no longer permissible evidence in court.

Cannabis sniffer dogs redundant

The reversal of the McKnight case spells the redundancy of cannabis sniffer dogs. Vermont and Oregon have already stopped training the dogs to alert for cannabis. It is now legal. There are still cannabis sniffer dogs on staff in some areas, but this court case could soon make them redundant.
Quincy Police Department’s newest dog recruit Charlie is not trained to detect the scent of cannabis. He can detect the smells of opioids, methamphetamines and cocaine. Charlie passed his cannabis test with flying colours when faced 200 lbs of cannabis. He did not flinch or show any interest in the cannabis.
Cannabis is also legal in Massachusetts. Gradually, the legalisation process began with small amounts being legal starting in 2008. Medical cannabis became legalised in 2012. Many police departments began phasing out cannabis detection when training new sniffer dogs. The decision in Colorado means even more sniffer dogs could face redundancy and early retirement.
Quincy criminal defence attorney and former Boston Police Department drug unit head Richard Sweeney said this has become a big problem for police departments. He said the issue was with the role drug sniffer dogs had in giving their handlers “probable cause” to search without first getting a warrant. The Fourth Amendment has an exemption in respect to searches and seizures. Anything illicit (including stolen goods and firearms) found after a sniffer indicates the presence of illicit substances is admissible in a court of law. Legalisation of cannabis has complicated this exemption further. Handlers cannot tell whether the dog is indicating the smell of illegal opioids or legal cannabis. Because of this, police do not have probable cause for a search when a sniffer dog trained to sniff out cannabis indicates illicit drugs.
Plymouth criminal defence attorney Jeffrey Sankey said that no longer is the smell of illicit substances going to lead to probable cause for a search.

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